Supreme Court Date Set for Grokster

Washington, DC - The US Supreme Court set the date for
oral argument in MGM v. Grokster for March 29, 2005. EFF
is defending StreamCast Networks, the company behind the
Morpheus peer-to-peer (P2P) software, against 28 of the
world's largest entertainment companies.

The companies first brought this lawsuit against the makers
of the Morpheus, Grokster, and KaZaA software products
in 2001, hoping to obtain a legal precedent that would hold
technology makers responsible for the infringements
committed by the users of their products. The entertainment
companies lost in District Court, then lost again on
appeal to the Ninth Circuit Court of Appeals.

The lower court rulings were based on the Supreme Court's
landmark decision in the 1984 Sony Betamax case, which
determined that Sony was not liable for copyright
violations by users of the Betamax VCR.

EFF Announces "Endangered Gizmos" List

Project Demonstrates How Bad Law Ruins the Environment for
Innovation

San Francisco - EFF this week announced a new project that
highlights the way misguided laws and lawsuits can
pollute the environment for technological innovation.
"Endangered Gizmos" is a natural history of technologies
from the Betamax VCR to filesharing software that
have been threatened or extinguished through ruthless
litigation. The "Endangered Gizmos" List gives readers
the vital statistics on a host of gadgets, along
with steps they can take to save those that haven't
yet been killed off.

The list also includes devices that have been saved by
good laws. The VCR, for example, was rescued from
extinction by the Supreme Court's 1984 landmark ruling in
Universal v. Sony, which shielded the Sony Betamax VCR
from being declared unlawful simply because people
could use it to infringe copyright.

"Endangered Gizmos" debuted the same day that the
opening briefs were filed in MGM v. Grokster, a Supreme
Court case the outcome of which could render extinct
several currently legal technologies. The public-awareness
campaign complements EFF's work defending StreamCast
Networks in the case.

"This isn't about saving one or two geeky gadgets. It's
about fostering technological development by letting
products be designed by technologists, rather than
Congress and the courts," said EFF Staff Attorney Wendy
Seltzer. "Lawsuits are destroying future technological
progress by killing off today's best innovations."

***EXTRA: EFF will hold a BayFF event to talk about/demo
Endangered Gizmos on February 22 at 111 Minna in downtown
San Francisco. Save the date - more details to follow!

Texas Court Orders Voting Examiners' Meetings Opened to Public

Requires "Sunshine" in Process of Choosing E-voting Machines

Texas - A Texas court ruled today that state voting
examiners may no longer bar the public from their meetings.
In the case, ACLU of Texas v. Connor, the plaintiffs argued
that the Texas Open Meetings Act should apply to meetings
of the voting examiners. These meetings are used to decide
what kinds of electronic voting machines will be used in
upcoming elections. EFF was co-counsel in the case.

"The court rightly rejected Texas' policy of shutting the
public out of the processes for selecting voting
technologies. The need for public trust in our election
systems cannot be overstated, and this is a terrific step
forward for the voters of Texas," said EFF Staff Attorney
Matt Zimmerman.

Recently, the Texas Safe Voting Coalition obtained
videotapes of previous meetings, including one involving
Diebold Election Systems, that suggest a lack of rigor and
failure to address proper security and certification
compliance issues.

"This ruling allows specialists in areas including computer
security, accessibility, and minority rights to offer their
own skills to complement the state's official election
examiners," said Dan Wallach, an assistant professor in the
Department of Computer Science at Rice University and
outspoken critic of poorly designed electronic voting
systems.

Op-ed: "Rethinking Recounts"

By Cindy Cohn
EFF Legal Director

When Congress passed the Help America Vote Act (HAVA) after
the Florida recount debacle, most of us imagined that new
electronic voting machines would make the voting process
easier. What we didn't anticipate was that some voting
machine vendors would make it "easier" by removing the
ability to do an accurate recount - the design equivalent of
a CEO making an audit "easier" by eliminating the
accounting department.

With the dust settling on the majority of the close elections
nationwide, we can see more clearly than ever the most
disturbing problem caused by using these rush-to-market
touchscreen voting machines: the recounts were, to put it
bluntly, a charade.

Let's start with the basics. The goal of a recount is to
ensure that the voters' intentions were properly recorded
and the right person won. That's why we pull out the punch
cards and review them for hanging chads, or check optically
scanned ballots for stray marks.

Nothing remotely that sensible took place in Washington State,
Ohio, or anywhere else that voters used paperless touchscreen
machines. Instead, we saw what can only be described
as a "reprint." Voting officials either fed the same vote
data through the same system a second time, or recounted the
machine data by hand or with a spreadsheet - always reaching
the same or roughly the same results. It doesn't take a
computer genius to recognize that this method of "recounting"
is simply a means of replicating any error in vote data
that may have existed the first time the votes were
tallied. It says absolutely nothing about whether the voters'
intentions were correctly recorded in the first place.

So how do we perform a legitimate recount using touchscreen
machines? The first and most obvious answer is to add paper.
With a voter-verified paper ballot, a basic "audit" is part
of the process. The voter can see on paper whether the
machine has correctly recorded his or her vote, and election
officials can check the machine count against the
voter-checked paper count.

That's the solution mandated by the "Holt bill" - popular,
bipartisan-supported federal legislation that Representative
Rush Holt (D-NJ) will reintroduce this congressional term.
It's already the law in California, New Hampshire, and
Alaska. And after the embarrassing, agonizingly protracted
battle over the recount in Ohio, Secretary of State Kenneth
Blackwell has prudently chosen to require the safest, most
auditable system available: precinct-counted optical-scan
machines.

But suppose your state or county can't see the writing on
the wall and chooses to stick with paperless machines.
There are still steps that voting officials can take to help
verify an election, including counting from the redundant
memory banks, examining the audit logs, and conducting
simple screen-calibration tests. E-voting machine vendors
themselves repeatedly cite the presence of redundant
memories as proof that touchscreen machines are auditable.
Yet in this election, many officials flatly refused to
look at them - leaving voters without even the most
bare-minimum safeguards against machine error and
vote-tampering.

It doesn't have to be this way. The Election Assistance
Commission (EAC) has just begun to formulate its work
plan for 2005. It could step forward to develop clear and
sensible guidelines for what constitutes a true recount
using touchscreen machines. Let's hope it moves swiftly -
before we lose any more elections to substandard machines,
needless confusion, and doubt.

Last Call for EFF Pioneer Award Nominees!

There's still time to tell us who you think deserves an
EFF Pioneer Award this year. The nominee can be a group
or individual from anywhere in the world. We will
continue to accept nominations until February 1, 2005.

A New Kind of Civil Disobedience
"Eyes on the Prize" is one of the most renowned civil
rights documentaries of all time, but no one can see it
because it's tied up too tightly in copyright's red tape.
In protest, Downhill Battle is launching a campaign
urging mass screenings on February 8 all across the
country:http://www.downhillbattle.org/eyes/

Won't Someone Please Think of the Children?
The US Copyright Office is investigating whether it needs
a system to clear the way for people who want to use
"orphaned" copyrighted works that have no visible parent
(rightsholder). If you'd like to use old, abandoned
software, books, photos, etc., follow the link below
to file your comments:http://www.eff.org/cgi/tiny?urlID=381
(Federal Register)

China Bans 50 Video Games for "Corrupting the Youth"
"FIFA Soccer" was on the list, as was a Microsoft game
that allows players to act out Greek mythology. No word
yet on whether "Grand Theft: Xizang" made the cut:http://uk.news.yahoo.com/050126/323/fb3k6.html

In Copyright, the Little Things Mean a Lot
EFF and the Brennan Center for Justice at NYU Law School
recently submitted a brief in opposition to a court
ruling that eliminated the "de minimis" exception to
copyright law. The exception, a long-standing component
of copyright law, allows creators to take an extremely
small portion of another work to create something new:http://www.fepproject.org/courtbriefs/bridgeport.pdf

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